Constitutional

Justice Edwin Cameron.

Many commentators nowadays in America seem to use the US Constitution – in the words of the old joke about statistics – the way a drunk uses a lamppost: more for support than illumination.  Yet even the UK – trying to maintain their 300 year union with Scotland – mutters that perhaps a constitution would be a good starting point for a new dispensation. So it might be interesting to consider what the constitution in South Africa has, or has not, achieved for our twenty year old democracy.  I’m not qualified to do that, but Justice Edwin Cameron has written an insightful book on exactly that subject titled: JUSTICE: A PERSONAL ACCOUNT.

  It’s written clearly without any legal jargon and, despite his role as a judge of the court, he tries to make an unbiased assessment.  More than that, he sets the book against his personal life as a gay man living with HIV.  His struggle with “coming out” – not out of the closet but making his HIV status public - is moving.  Today it is hard to believe how difficult that was, yet Cameron points out that even today he is one of only a handful of public figures in Africa who have done so.  Yet the incidence of HIV among Africans probably runs as high as 10%.

With what it has enshrined, it’s hard to believe that in some quarters the South African constitution is unpopular.  On the left, the complaint is that the constitution was a white sponsored conspiracy to maintain white privilege under a black government, while white reactionaries mutter that the constitution is a legal facade to deprive them of rights and property.  Usually if there’s criticism from both extremes, you're doing something right.

The Constitutional Court in Johannesburg

Before the change of government, South Africa used “common” law (and Roman Dutch law at that).  There was no constitution.  Basically the government of the day could get away with almost anything (maybe hold the “almost”) just by passing a new law or changing an existing one.  These could be – and were – challenged and struck down in the courts, but it was mainly an issue of the government phrasing the law correctly and following due process.  There was no ultimate framework to which one could appeal.  Cameron, an anti-apartheid activist who used the legal processes open to him to try to support the victims of the apartheid government, and whose commitment is beyond question, clearly remains ambivalent about whether that was the right thing to do or whether he'd just allowed himself to be co-opted to lend the regime respectability through its lip service to the law.

Nelson Mandela suffered one of the first major reverses from the new Constitutional Court when it threw out one of his initiatives.  Looking back on this, he said: “It was, to me, never reason for irritation but rather a source of comfort when these bodies were asked to adjudicate on actions of my government and my office and judged against.”  But that was Nelson Mandela. 

President "No"

His successor, Thabo Mbeki, was a different man.  For reasons which still remain a matter of speculation, Mbeki, highly educated and intellectual, was (and maybe still is) an AIDS denialist.  That is, he denied the connection between HIV and AIDS, seeing the latter as the result of bad environment and nutrition among poor people.  Cameron tears this to shreds, and it’s hardly worth commenting on.  But the impact was huge.  Not only was the president of the country wiping aside the impact of, for example, unprotected sex, but public hospitals denied ARVs to HIV positive people.  Pregnant mothers could only receive Nevirapine, the drug that could prevent HIV transmission to their babies, at a few designated “pilot site” hospitals, while Mbeki’s minister of health trumpeted the efficacy of African potatoes and beetroot.

Zackie Achmat Founder of the TAC

It was in this atmosphere that the Treatment Action Campaign took to the courts.  The arguments were carefully phrased.  The cost of the drug was not the issue.  The German company that developed and manufactured Nevirapine had offered to supply it – in any quantity required – to the South African public health authorities FOR FREE for five years.  Incredibly their offer was rejected out of hand.  Against this background the Treatment Action Campaign took their case for relief to the High Court in 2002.  When they won there, the government appealed to the Constitutional Court.  The TAC won there too.  Two years later, the government abandoned its approach and wholeheartedly faced the HIV epidemic.  Mbeki’s disastrous blind spot had only one saving grace: his government made it clear that they would abide by the decision of the Court.  By doing so, he ensured that the rule of law and the lofty founding principles of the New South Africa would not be tarnished. It was too late to do the same for his reputation and legacy. He was dumped by his party after a single term as president.

Michael – Thursday.